It is a deposition question that too often surprises lawyers and corporate-witness deponents.  Upon return from a water or lunch recess, the deposing lawyer asks the witness: “So, tell me what you and your company’s lawyer discussed during the break?”  Can the deposing lawyer ask that?  Does the defending lawyer have an attorney-client privilege objection?

In-House and outside counsel focus their deposition preparation on reviewing the notice-of-deposition topics, selecting the most appropriate corporate employee for the deposition task, and preparing that witness with the boilerplate deposition ”dos and don’ts.”  And while many lawyers defending depositions see every break as an opportunity to consult with the witness, they neglect to consider whether these in-deposition consultations are privileged and, importantly, to prepare the witness how to answer an out-of-the break question about those consultations.

Unfortunately, there is no uniform rule on whether lawyers may have privileged conversations with witnesses during deposition breaks.  Some jurisdictions prohibit all during-the-break consultations except when necessary to assert an evidentiary privilege.  Other jurisdictions reject this draconian rule for the more practical approach of permitting break-time discussions except when a question is pending.  In my recent article, Protecting Attorney-Corporate Witness Consultations During Deposition Breaks, published by Inside Counsel, I explore the various rules on this issue and provide practical tips for preparing lawyers and witnesses for this inevitable happening.

You may access the article at this link.  How does your jurisdiction–state or federal–handle this situation?  Place your comments in this post–perhaps we can gather the local rules, judicial rulings, and local practices so that others may find answers in a single forum.

As originally published at presnellonprivileges.com 
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In a major decision concerning privilege waiver, the Illinois Supreme Court, in Center Partners, LTD v. Growth Head GP, LLC, ruled that the subject matter waiver doctrine does not apply to privileged communications disclosed in an extrajudicial context.  The Court’s decision, which can be accessed here, answered a question of first impression in Illinois and will serve as influential authority when other states consider the scope of subject matter waiver.

Question at Issue
The precise question before the Court was whether, as a matter of law, the subject matter waiver doctrine applies to the disclosure of privileged information made outside of a litigation or judicial setting (an extrajudicial setting).

Illinois Supreme Court
Where a privileged communication is voluntarily disclosed, the subject matter waiver doctrine extends this waiver to all other communications pertaining to the same subject matter.  The purpose of the doctrine is to prevent a party from selectively disclosing favorable information while simultaneously withholding unfavorable information under the cloak of privilege. The question in Center Partners was whether the subject matter doctrine, and its underlying purpose, should apply in non-litigation contexts.

Facts of Case
The Center Partners case involved a complicated business transaction.  In short, three companies negotiated the purchase of Rodamco North America, N.V., including the General Partner of one of Rodamco’s holdings.  During the purchase negotiations, the purchasing entities and their lawyers exchanged privileged information concerning the legal implications of the transaction, rights and obligations of the parties to the transaction, and legal concerns and conclusions about the structure of a new partnership agreement.  A couple of years after the transaction was complete, a group of minority limited partners sued for breach of contractual and fiduciary duties, and sought all communications actually disclosed between the purchasing entities and all privileged, non-disclosed communications concerning the same subject matter.

Court’s Ruling
In an issue of first impression in Illinois, the Court ruled that the subject matter waiver doctrine does not apply where privileged communications are disclosed in an extrajudicial setting. The Court based its decision in large part on the doctrine’s underlying purpose.  The purpose is to prevent a party from using an evidentiary privilege offensively (sword) to disclose favorable information and later defensively (shield) to withhold unfavorable information pertaining to the same subject matter.

The Court reasoned that, outside the litigation context, parties generally do not decide to disclose privileged information for sword and shield purposes.  In many non-litigation settings, such as business transactions, parties disclose privileged information before litigation is initiated or even contemplated.  And expanding the subject matter waiver doctrine to non-litigation contexts would produce a perverse result: parties may “leave attorneys out of commercial negotiations for fear that their inclusion would later force wholesale disclosure of confidential information.” Consequently, the Court found that the purpose of the subject matter waiver doctrine is simply not served by expanding it to non-litigation contexts.

The Court placed one limitation on its ruling.  It stated that, if a disclosure is made during a business negotiation to gain a later tactical advantage in anticipated litigation, then the subject matter waiver doctrine would still apply if such a disclosure is later used by the disclosing party at any point during the litigation to gain a tactical advantage.

PoP Analysis
Most states have not addressed the issue whether the subject matter waiver doctrine applies in extrajudicial contexts, and this area of evidentiary privileges needs more development.  The Illinois Supreme Court’s decision in Center Partners is based on sound reasoning and will likely serve as persuasive authority when the issue arises in other states.  And while the decision was made in the non-litigation context of business transactions, it will likely serve as persuasive authority for disclosures made in other non-litigation contexts such as disclosures made during settlement negotiations, government investigations, regulatory compliance filings, or for public relations/media purposes.  For a more detailed analysis of these issues, see an earlier PoP post recommending an IADC article by Andrew Kopon and M.C. Sungaila.


The original post by Todd Presnell was published on December 3 and can be found here
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What does Rocky Mariciano, one of the greatest heavyweight boxers of all time, have to do with evidentiary privileges? Plenty, as it turns out, for it was a libel case arising from Mariciano’s comments following his famous 1952 fight against Jersey Joe Walcott that solidified the then-evolving theory that the government-information privilege applies in civil actions.


The Government-Informant Privilege

The government-informant privilege protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not the informer, but protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to government officials.

The privilege is qualified, meaning that it may be overcome upon a sufficient showing of need by the defendant. In a landmark decision, the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to the defense or is essential to a fair determination of the cause. And to determine whether either of these standards is met, courts must balance the public’s interest in keeping the informer’s identity confidential against the defendant’s right to prepare a defense.

There is no fixed rule on when disclosure is required; courts must make the assessment on a case-by-case basis,and have sole discretion to determine whether the evidence justifies disclosure.  The court must consider several factors when balancing the competing interests, such as the crime charged, the possible defenses, significance of the informer’s testimony, and danger to the informant if his identity is revealed.

Does the Privilege Apply in Civil Actions?

The government-informant privilege is routinely asserted in criminal cases, with the typical situation involving a criminally accused seeking to discover the identity of the informer who provided police with the tip that led to the accused’s arrest.  But the question arises whether this privilege may be applied in civil actions and, if so, whether the same standard governs the privilege.

The situation can arise in two situations.  First, a plaintiff may seek disclosure of an informer’s identity during a civil action against the government, such as a civil rights action under 42 U.S.C § 1983.  Similarly, a party involved in a civil action against another private party may seek third-party discovery from a law-enforcement agency.  Second, the question arises whether private entities may assert the government-informant privilege to preclude disclosure of a whistleblower, or one who reported misconduct up the corporate chain of command in addition to a regulatory enforcement agency.

In the latter situation, most courts hold that the privilege does not apply where the whistleblower’s identity is sought from the private entity, but in the former situation, most courts hold that the privilege applies where the informer’s identity is sought from a governmental agency.  And a case involving one of the greatest fights–and knockout punches–of Rocky Marciano’s career illustrates the point.

Rocky Marciano & the Greatest Punch of All-Time

With a record of 49-0, Rocky Marciano is the only boxer to retire as heavyweight champion with an undefeated record and is recognized as one of the greatest boxers of all time.  Marciano won his title on September 23, 1952 when he defeated reigning champion Jersey Joe Walcott by a Round 13 knockout.  Marciano later described the knockout punch as “the best punch I ever landed,” and boxing historians generally agree that Marciano’s punch was one of the greatest punches in all of boxing history. 

As originally posted on November 27 on Presnell on Privileges
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Each political season brings inevitable election contests, whether at the local, state, or federal level. These challenges often require determining whether illegal votes were cast and, in these instances, election challengers likely need voters to testify for whom they voted.  But with ballot secrecy a prominent tenet of American Democracy, the question arises whether voters may refuse to disclose their ballots on grounds of a political-vote privilege.

The political-vote privilege protects from compelled disclosure a voter’s selection in a public election. This privilege is well-established in American law, but opinions differ over whether the privilege derives from the common law or from a constitutional basis. Regardless of the privilege’s foundation, the political-vote privilege ensures that a voter’s choice is kept secret, which is considered essential to keeping democratic elections free from coercion, oppression, and retaliation.

Historically, the political-vote privilege was recognized under American common law and by the U.S. House of Representatives in the years immediately following adoption of the United States Constitution. Courts and commentators agree that the political-vote privilege was first recognized in the 1795 South Carolina decision Johnston v. Corporation of Charleston, 1 S.C.L. (1 Bay) 441 (S.C. Ct. Com. Pl. & Gen. Sess. Jan. 1795), available at 1795 WL 376. In this election-contest case over the city warden position, the court refused to compel voters to reveal the candidate for whom they voted.

This refusal to compel voters to reveal the substance of their ballots gradually became the rule in several states. For example, five years later, in 1800, the Pennsylvania Supreme Court declared that the criminal charge of election-influencing may not depend on proving how an individual voted, for “no citizen is compellable to declare how he has given his suffrage.”Respublica v. Ray, 3 Yeates 65 (Pa. 1800), available at 1800 WL 2544, at *2.

In 1817, the political-vote privilege was recognized by the United States House of Representatives Committee on Elections. Chester H. Rowell, A Historical and Legal Digest of all the Contested Election Cases in the House of Representatives of the United States from the First to the Fifty-Sixth Congress, 1789–1901, at 68–69 (GPO 1901). This committee was charged with deciding an election dispute between Rufus Easton and John Scott for the nonvoting delegate seat for the MissouriTerritory. Easton, the incumbent, lost the election to Scott by fifteen votes and petitioned the United States House of Representatives to unseat Scott on the ground of illegal voting. During its review of voter qualifications, the committee determined that it could not compel voters to disclose for whom they voted because of a right to ballot secrecy. The House ultimately vacated the seat and ordered a new election.

The political-vote privilege developed further with several influential state-court decisions in the mid 1800s. In 1863, the New York Court of Appeals, inPeople v. Pease, 27 N.Y. 45 (1863). declared that voters could not be required to disclose their ballots. And in the 1868 election contest for Wayne County Sheriff, the Michigan Supreme Court, in People v. Cicott, 16 Mich. 283 (1868), agreed, stating that a qualified voter cannot be compelled to disclose how he voted. Other states similarly adopted this privilege. SeeWilliams v. Stein, 38 Ind. 89 (1871); State v. Hilmantel, 23 Wis. 422 (1868); State v. Olin, 23 Wis. 309 (1868).

An exception to the political-vote privilege developed, however, regarding legally unqualified voters, to whom the privilege was not applied. McDaniel’s Case, 3 Penn. L. J. 310 (Ct. Quarter Sess., Philadelphia 1844). The privilege may also be waived when a voter voluntarily consents to disclose the substance of his vote. Martin v. Wood, 4 N.Y. S. 208, 209 (Sup. Ct. 1888).

The political-vote privilege has received relatively little attention under federal common law. Although the United States Constitution does not specifically guarantee voting secrecy, Anderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981); Smith v. Dunn, 381 F. Supp. 822, 825 (M.D. Tenn. 1974), many courts have recognized that voting secrecy is a fundamental tenet of American democracy. United States v. Executive Comm. of the Democratic Party of Greene County, Ala., 254 F. Supp. 543, 546 (N.D. Ala. 1966). But no federal court has expressly recognized a political-vote privilege on federal constitutional grounds. In 1975, the United States Supreme Court included a political-vote privilege as part of its proposed evidence rules, see 56 F.R.D. 183, 249 (1972), but Congress rejected all of the proposed privileges in favor of a general privilege rule permitting the development of privileges under common law. Since this rejection, only a few federal courts have recognized a political-vote privilege under common law. See, e.g., In re Dinnan, 661 F.2d 426, 431–32 (5th Cir. 1981); D’Aurizio v. Borough of Palisades Park, 899 F. Supp. 1352 (D.N.J. 1995).

In 1974, the National Conference on Uniform State Laws (NCUSL) published its second edition of the Uniform Rules of Evidence, which largely followed the proposed Federal Rules of Evidence. These uniform rules included a political-vote privilege that was identical to the proposed federal privilege, and read as follows:

(a) General Rule of Privilege.  An individual has a privilege to refuse to disclose the tenor of the individual’s vote at a political election conducted by secret ballot.

(b) Exceptions.  The privilege under subdivision (a) does not apply if the court finds that the vote was cast illegally or determines that disclosure should be compelled pursuant to the election laws of the State.

A large majority of states have adopted the evidentiary privileges contained in either the Uniform Rules or the proposed Federal Rules, and some have included the political-vote privilege, while others have not.  In other states, the privilege has common-law or state constitutional support, while other states remain silent on the issue.

So, where does your state fall?  The red-state/blue-state map in this post identifies the states that have adopted the political-vote privilege promulgated by the NCUSL, and those where the privilege has at least some common-law support.

In sum, whether by rule or common law, the political-vote privilege protects from compelled disclosure a legal voter’s selection in a public election.  The privilege does not apply where it is proven that the voter illegally cast a ballot.  The illegal voter may assert his Fifth Amendment privilege against self-incrimination to avoid revealing his vote, but the political-vote privilege will offer no protection.

 

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